Tort Law and Responsibility
John C. P. Goldberg
Harvard Law School
Benjamin C. Zipursky
Fordham University School of Law
May 22, 2013
In John Oberdiek, ed., Philosophical Foundations of the Law of Torts (2014, Forthcoming)
Fordham Law Legal Studies Research Paper No. 2268683
It borders on banality to observe that tort law enables injury victims to hold tortfeasors responsible for having wrongfully injured them. Yet modern torts scholarship has largely obscured the centrality of responsibility to tort law. This is true not only of avowedly instrumental and prescriptive theories, but also of many corrective justice theories.
In this chapter, we aim to provide an account of the centrality of responsibility to tort law, thereby restoring its proper place in tort theory. We first review the impressive effort of Stephen Perry to harness Tony Honoré’s notion of “outcome-responsibility” to supply a satisfactory understanding of tort law, and negligence law in particular. We then demonstrate how notions of responsibility of the sort invoked by Perry help explain some of the most important developments in modern tort doctrine, including the emergence of strict products liability, comparative fault, and robust-yet-limited affirmative duties. Finally, we argue that our own interpretive account — the civil recourse theory of tort — is superior to Perry’s in that it places notions of responsibility at the center of tort law while also making better sense of prevailing doctrine.
Number of Pages in PDF File: 23
Keywords: Accountability, Affirmative Duty, Civil Recourse, Coleman, Comparative Fault, Corrective Justice, Damages, Duty of Repair, Hart, Hershovitz, Honoré, Liability, Localized Distributive Justice, Outcome-Responsibility, Perry, Remedies, Repair, Responsibility, Rights of Action, Strict Products Liability
Date posted: May 24, 2013